DISCIPLINARY POLICY AND PROCEDURE March 2018

Transcription

1 DISCIPLINARY POLICY AND PROCEDURE March 2018 Authorship: HR Lead, embed Committee Approved: SMT Approved date: March 2018 Review Date: July 2018 Relevant Screening Full / Completed Outcome Equality Impact Assessment Sustainability Impact Assessment Privacy Impact Assessment Yes Yes No No issues identified Yes Yes No issues identified No No No Not Relevant Bribery Checklist No No Not Relevant Target Audience: Policy Reference No: Version Number: Publication/Distribution All CCG Staff P603 V.1.1 Website Staff Yes Yes No Others (i.e. SBC) The on-line version is the only version that is maintained. Any printed copies should, therefore, be viewed as uncontrolled and as such may not necessarily contain the latest updates and amendments.

2 POLICY AMENDMENTS Amendments to the Policy will be issued from time to time. A new amendment history will be issued with each change. New Version Number Issued by Nature of Amendment Approved by & Date Date approved Date on Intranet DRAFT SRCCG Draft policy for CCG Senior Management Team 11/03/14 n/a DRAFT SRCCG Draft policy for CCG JTUPF 23/07/14 n/a FINAL SRCCG Final Policy for CCG Senior Management Team 12/08/14 n/a 1.1 SRCCG Minor Amend - Updated in regards to GDPR SPF SMT 10/01/18 12/03/18 19/03/18

3 Contents 1 INTRODUCTION ENGAGEMENT IMPACT ANALYSES Equality Sustainability Bribery Act SCOPE POLICY PURPOSE & AIMS DEFINITIONS ROLES / RESPONSIBILITIES / DUTIES IMPLEMENTATION TRAINING & AWARENESS MONITORING & AUDIT POLICY REVIEW REFERENCES ASSOCIATED DOCUMENTATION PROCEDURE PART I: DEALING WITH ISSUES INFORMALLY AND INVESTIGATIONS 10 1 Informal Interviews / Counselling Potential Disciplinary Event Representation Local Representatives of Staff Organisations Criminal Charges Confidentiality Suspension Investigation PROCEDURE PART II: STAGES OF THE PROCEDURE FORMAL DISCIPLINARY HEARING... 14

4 1 Overview Letter Hearing Disciplinary Sanctions Appeals Verbal, First and Final Written Warning Dismissal Record-keeping APPENDICES Appendix 1: Procedure to Be Followed at a Disciplinary Hearing Appendix 2: Code of Good Practice for Investigations Appendix 3: Examples of issues that the CCG is likely to consider as misconduct and gross misconduct and which may result in summary dismissal Misconduct Gross Misconduct Appendix 4: Standards of Performance and Conduct Department Rules Standards of Conduct Appendix 5: Appeals Against Dismissal - CCG Appeals Procedure Panel Membership Panel Arrangements Statements of Case Role and Decision Making Powers of the Panel Role of the Secretary to the Appeal Notification of Panel Decisions Representation / Others present at the Appeal The Employee and Representative The Manager Witnesses Observers... 28

5 12.8 Failure to Appear at the Appeal Procedure to be followed at the Hearing The Role of the Chair of the Panel Order of presentation of Case Appendix 6: Specimen Letter - Confirmation of Suspension Appendix 7: Specimen Letter - Request Attendance at Disciplinary Hearing Appendix 8: Specimen Letter Outcome of Disciplinary Hearing... 32

6 1 INTRODUCTION Scarborough and Ryedale Clinical Commissioning Group (hereafter the CCG) will make every reasonable effort to ensure that all staff are aware of the standards of conduct and behaviour expected of them, and are supported in achieving those standards. Potential misconduct will be investigated promptly, fairly and consistently. Where misconduct is proven, options available to managers will include informal counselling, training and formal disciplinary sanctions. All cases will be dealt with constructively, in accordance with the following procedure, and any disciplinary sanction will be proportionate to the circumstances of the specific case. At all times, line managers will take account of the potential effects of disciplinary allegations, investigations and hearings on staff, patients and stakeholders including those directly involved in the process. Every reasonable step will be taken to maintain a positive working environment and confidence in the organisation whilst dealing fairly and effectively with issues of misconduct. 2 ENGAGEMENT Joint Trade Union Partnership Forum/Policy Development Group SRCCG employees via team meetings/team brief/internet 3 IMPACT ANALYSES 3.1 Equality In applying this policy, the CCG will have due regard to the need to eliminate unlawful discrimination, promote equality of opportunity, and provide for good relations between people of diverse groups, in particular on the grounds of the following characteristics protected by the Equality Act (2010); age, disability, gender, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation, in addition to offending background, trade union membership, or any other personal characteristic. An Equality Impact Assessment is attached at Appendix 2. There is no evidence of adverse impact on any group from the policy, but good practice and national evidence would suggest that monitoring of the policy particularly in disability and race is essential. 3.2 Sustainability A Sustainability Impact Assessment has been completed for this policy and is attached at Appendix Bribery Act 2010 The Bribery Act is particularly relevant to this policy. Under the Bribery Act it is a criminal offence to:

7 bribe another person by offering, promising or giving a financial or other advantage to induce them to perform improperly a relevant function or activity, or as a reward for already having done so; and be bribed by another person by requesting, agreeing to receive or accepting a financial or other advantage with the intention that a relevant function or activity would then be performed improperly, or as a reward for having already done so. These offences can be committed directly or by and through a third person and other related policies and documentation (as detailed on the CCG intranet) when considering whether to offer or accept gifts and hospitality and/or other incentives. Anyone with concerns or reasonably held suspicions about potentially fraudulent activity or practice should refer to the Local Anti-Fraud and Corruption Policy and contact the Local Counter Fraud Specialist 4 SCOPE This policy applies to all employees of the CCG. This includes staff on honorary contracts, bank contracts or a secondment with the CCG and another employer. This policy does not apply to independent contractors (including agency staff) working on a contract for services basis. The time limits set out in this procedure are based on a seven-day week, excluding public holidays. Time limits may only be varied by mutual agreement, the details of which will be confirmed in writing. 5 POLICY PURPOSE & AIMS This policy is designed to deal with cases of suspected or actual personal misconduct. Separate policies exist to deal with issues relating to professional competence, job performance or attendance, except where poor performance or attendance can be attributed to misconduct. 6 DEFINITIONS For the purpose of this policy, the person or persons facing the allegations will be known as the Respondent(s). Any reference to the respondent should be taken to include his or her representative. The term Representative is used throughout this procedure and shall be taken to include either a Trade Union/Professional Association Representative or another employee. 7 ROLES / RESPONSIBILITIES / DUTIES Managers must be clear as to which staff they are accountable for, the extent to which they are able to take disciplinary action, and who has the authority to take disciplinary action in their absence.

8 Management have a responsibility to make clear to staff the rules, regulations and standards of conduct and work performance which they are expected to observe/achieve. Management must ensure that all discussions during the disciplinary process are fair, appropriate and above reproach. Management must ensure that any action taken is in accordance with the procedure, is reasonable in the circumstances, and is in accordance with guidance issued. Every employee has a responsibility to familiarise themselves with the rules and standards of conduct and performance which relate to their area of work. The procedure does not prejudice the employee s right of appeal to an Employment Tribunal under the provisions of the Employment Rights Act Standards of Performance and Conduct are attached at Appendix 4. 8 IMPLEMENTATION This policy will be communicated to staff via team meetings/team brief and will be available for staff on the intranet. Breaches of this policy may be investigated and may result in the matter being treated as a disciplinary offence under the CCGs disciplinary procedure. 9 TRAINING & AWARENESS A copy of the policy will be available on the CCG intranet. Training needs will be identified via the appraisal process and training needs analysis. 10 MONITORING & AUDIT The implementation of this policy will be audited on an annual basis by the CCG and reported to CCG Governing Body. 11 POLICY REVIEW The policy and procedure will be reviewed after 3 years for the CCG Governing Body in conjunction with Trade Union representatives. Where review is necessary due to legislative change, this will happen immediately. 12 REFERENCES Employment Rights Act ASSOCIATED DOCUMENTATION Whistleblowing Policy Standards of Business Conduct

9 Professional Registration Policy Managing Performance Policy Managing Absence Policy Policy, Procedures and Guidance for responding to allegations of abuse or neglect of a child against and employee of NHS Scarborough and Ryedale CCG

10 14 PROCEDURE PART I: DEALING WITH ISSUES INFORMALLY AND INVESTIGATIONS 1 Informal Interviews / Counselling Where an employee's conduct or performance is not acceptable, the immediate line manager should discuss the matter with the individual. This should take the form of a counselling interview and should attempt to determine if there are any problems facing the employee which can be overcome, or if there are reasons for the employee's conduct or performance. Counselling represents the first attempt to help an employee and may reveal the need for specific action for this purpose, e.g. training. The aim of counselling should be to prevent the need for the use of the formal disciplinary procedure. Minor breaches of discipline, unless persistent, are usually best dealt with on an informal basis by an employee s immediate superior. Such informal interviews or informal warnings represent a first attempt to help an employee address the inappropriate behaviour or conduct. 2 Potential Disciplinary Event If the line manager feels that an incident is more than a minor breach of discipline they must seek specialist advice from the Workforce Department immediately to enable them to make a decision about what initial action is appropriate. 3 Representation At the commencement of any formal investigation employees must be made aware of their right to representation throughout the procedure, either by a representative of a trade union or professional association or by a CCG colleague not acting in a legal capacity. This does not apply to suspension as suspension in itself is not disciplinary action. Where the person accompanying the employee under investigation is an employee of the CCG, that person shall be entitled to paid time off to undertake this role. 4 Local Representatives of Staff Organisations No disciplinary action can be taken against a recognised representative of a staff organisation until the circumstances have been discussed with a full-time officer of the organisation concerned. The full-time officer must be invited to attend any investigative interview conducted. This does not apply to suspension as suspension is not in itself disciplinary action. However, once a recognised representative of a staff organisation has been suspended, the appropriate full time officer should be informed of the suspension.

11 5 Criminal Charges An employee who is charged with, or convicted of, a criminal offence (including receipt of a summons) must inform their line manager as soon as possible. In such circumstances the manager should seek advice from the Workforce Department as to what course of action may be appropriate. Notification about criminal proceedings or a conviction will not necessarily lead to disciplinary action being taken. Following disclosure the CCG will determine what, if any, action will be taken after considering the facts of the case and the relevance of the charge or conviction to the job undertaken. Staff who are employed for all or part of their duty as a driver or where the requirement to drive is an essential part of their duties must inform their manager if charged with any driving offence, including speeding. 6 Confidentiality All persons involved in any disciplinary investigation should treat the matter in the strictest confidence. 7 Suspension Suspension is not a disciplinary sanction but may be appropriate in potentially serious circumstances where it is considered that allowing the employee to continue working could place the safety/well-being of patients, staff or the employee themselves at risk or where it is felt that the continued presence of the employee may impair the investigation. Also in certain cases where police enquiries take place it may be decided that suspension is necessary. As part of the assessment to decide whether suspension is an appropriate course of action it may be necessary, in certain cases, to involve the respondent in a preliminary discussion to establish certain facts before a decision can be made. Suspension will be on full pay and will be confirmed in writing within 24 hours. Full pay shall equate to the rate applicable as if the employee were working. Exemptions to this may apply. Please see the Professional Registration Policy for further details. The employee should be seen in person and have the allegations put to them when the decision to suspend is taken. Requests for a representative to be present will not be refused however such action will not be delayed in the event of non-availability. In normal circumstances an employee will only be suspended by a Manager with the authority to dismiss (see Part II, section 4.1), or a manager with delegated authority. Suspension will initially be for a maximum of 28 days, after which time the decision will be reviewed by the investigating officer. If investigations are continuing the suspension will be extended and reviewed monthly thereafter. The employee should be written to after each review to confirm the ongoing suspension. A condition of continued payment during suspension will be that the employee must be available during their normal hours to attend any meeting that may be convened as part of any investigation.

12 In cases where a member of staff submits a doctors sick note whilst suspended from duty, the suspension will over- ride the sick leave. The employee will not be allowed to enter the CCG s premises other than with the prior permission of their line manager or suspending manager. Other than in exceptional circumstances the employee will be granted permission to enter the premises on request to consult with their representative. Advice on the potential suspension of a member of staff can be sought from the appropriate workforce representative. If it is necessary to suspend a member of staff outside of normal working hours the on-call manager should be contacted in the first instance, who should in turn contact an Executive Director for guidance and approval. See Appendix 6 for an example of a letter confirming suspension. 8 Investigation Investigations into alleged breaches of discipline should be carried out without delay to ensure careful collection and assessment of facts. All disciplinary investigations should be guided by the Investigation Good Practice Guide, as attached in appendix 2. The following paragraphs outline the main points relating to investigations. i. Where allegations of misconduct arise, the line manager of the respondent will normally act as the investigating officer, with support from a workforce representative. In certain circumstances e.g. bullying and harassment cases, it may be appropriate to appoint an independent investigating officer from another department. It is imperative that the investigating officer is clear about the allegation(s) they are investigating. ii. iii. iv. It is the responsibility of the Investigating Officer to ensure that the investigation does not become unnecessarily protracted, and therefore is conducted in a timely manner. The role of the investigating officer is to establish the relevant facts of any particular case and to make recommendations to the manager on whether the case should progress to a formal hearing or whether there appears to be no case to answer. In the event of a formal hearing, the investigating officer will present the facts objectively at a hearing using such evidence or witnesses as he or she deems necessary in the interests of natural justice. The investigating officer will, with due notice, interview the complainant(s) and the respondent(s) to determine what further evidence might be required and to estimate the likely timetable for the completion of the investigation. v. The respondent is entitled to be represented by a Trade Union/Professional Organisation representative or work colleague in the course of any investigatory interview or subsequent hearing. There is no right to legal representation under this procedure.

13 vi. vii. Complainants and witnesses will not normally be represented but may, for example in complaints of harassment or bullying, be supported by a trade union representative or CCG colleague. Those undertaking a supporting role will not be entitled to take part in the proceedings. Investigations will be conducted as openly as possible, balancing the dignity and confidentiality of the individuals concerned with the wider interests of the CCG and its staff. At the conclusion of the investigation, the investigating officer will decide the appropriate course of action and report this to the relevant senior manager. Options will normally be limited to: i. Take no action, in which case any reference to the matter will be removed from the personal file ii. iii. iv. Deal with the matter informally, in accordance with Part 1, paragraph 1 above Offer the parties counselling or conciliation, which would need to be agreed with the parties involved, with a clear understanding of the timescales for, and objectives of, such action. The other options will remain available to the line manager in the event that counselling or conciliation does not resolve the issue. Proceed to a formal disciplinary hearing in accordance with the procedure outlined in Part II below. Any alternative options should be discussed with embed HR. The outcome will be confirmed to the relevant parties in writing. It should be stressed that a decision to pursue a specific course of action does not indicate guilt or innocence, which can only be determined by a properly constituted disciplinary or appeal hearing.

14 9 PROCEDURE PART II: STAGES OF THE PROCEDURE FORMAL DISCIPLINARY HEARING 1 Overview Where following an investigation, a decision is made to proceed to a disciplinary hearing, the hearing will be conducted by a panel, consisting of a manager with workforce support, none of whom should have any previous involvement in the investigation. Where a hearing is to be conducted, it should always have three main stages: letter, hearing and appeal. 2 Letter The respondent must be notified in writing at least seven working days in advance, unless otherwise mutually agreed, of the purpose of the meeting, of the specific nature of any allegation(s) and the right to representation. Where dismissal is a possible outcome, the letter should inform the respondent that this is a possible disciplinary sanction available to the panel if the case is proven. All documentary information, including witness statements, that will be presented to the panel will be provided to the respondent at this stage. The respondent(s) will have an opportunity to challenge or question any evidence presented to the disciplinary panel. A specimen letter is attached as appendix 7. 3 Hearing Hearings will follow the procedure as detailed in appendix 1. At the hearing the respondent should be given the opportunity to state their case fully. If it transpires that more time is needed for further investigation, the hearing should be adjourned and resumed later. Any concerns or questions concerning the arrangements for the hearing should be notified to the line manager at the earliest opportunity, who will attempt to resolve such issues in a fair and reasonable manner. If a respondent fails to attend a disciplinary hearing without good cause the case may proceed in his or her absence. The decision of the hearing will, wherever possible, be given to the respondent at the meeting and will, in any event, be confirmed in writing within seven days of the hearing. The letter of confirmation will include, if applicable, details of the right of appeal. A specimen letter is attached as appendix 8. Where, having agreed the arrangements for hearing, either party fails to appear without good cause the panel may choose to adjourn the hearing or to proceed with the case in their absence.

15 4 Disciplinary Sanctions If the allegations are proven decisions relating to the level, if any, of disciplinary action to be taken will be a matter of judgement for the panel. The panel must however consider: i. the seriousness of the disciplinary breach in question ii. iii. iv. the relevance and context of the facts/information presented the employees previous employment record and the existence of any current, relevant disciplinary warnings issues relating to fairness, consistency and the substantial merits of the information presented v. any mitigating factors A list of examples of issues that the CCG is likely to consider as misconduct and gross misconduct can be found in Appendix 3. Within the terms of this procedure there are six possible outcomes following a disciplinary hearing: - Sanction Length of time on personal file Authorised Manager Appeal to No action n/a n/a n/a Verbal Warning 6 months Line Manager Senior Manager First Written Warning 12 months Line Manager Senior Manager SMT Member or Chief Officer or SMT Final Written 12 months manager with Member not previously Warning delegated authority involved Downgrading, Redeployment or transfer* Dismissal 12 months for final written warning N/A SMT member or manager with delegated authority Chief Officer or SMT Member with delegated authority Chief Officer or SMT Member not previously involved CCG Appeals Panel (chaired by a Lay/GP Governing Body)Member of *As an alternative to dismissal and accompanied by a final written warning **Can be extended up to 24 months in extenuating circumstances (e.g. this may be an alternative to dismissal). If the allegation is proven, a First Written Warning will normally be issued and will remain live on the employee s personal file for 12 months. A copy of the written warning will be kept on file but should normally be disregarded for future disciplinary sanctions after 12 months from the date and time of issue. The employee has the right to appeal. If the issue is sufficiently serious or if there is a still an active First Written Warning in place and insufficient improvement has been made or further misconduct occurs, a Final Written Warning will normally be issued and will remain live on the employee s personal file for 12 months. A copy of the written warning will be kept on file but should normally be

16 disregarded for future disciplinary sanctions after 12 months from the date of issue. The employee has the right to appeal. In the case of a final written warning it must be made clear to the respondent that any further misconduct or inappropriate behaviour of a similar nature could lead to dismissal and must be recorded as part of the written confirmation. The Chief Officer or SMT Member may, on a case-by-case basis, delegate their authority to other senior managers who will act on their behalf. 5 Appeals There is a right of appeal against any disciplinary sanction applied under this procedure, as follows: 5.1 Verbal, First and Final Written Warning Appeals against a Verbal, First or Final Written Warning will be to a higher level of management not previously involved. It must be lodged with the Workforce representative in writing and setting out the reasons for the appeal, within 14 calendar days of receipt of the letter confirming the decision. 5.2 Dismissal An appeal against dismissal will be to a CCG Appeals Panel. Such an appeal must be lodged with the notified officer within 14 calendar days of receipt of the letter confirming dismissal. A CCG Appeals Panel will consist of three members including at least one Lay/GP Member of the CCG, who will act as chair to the panel. Other members will be drawn from the Senior Management Team or Governing Body plus a workforce representative. No member of the panel will have had any previous involvement in the case. A hearing will be held as quickly as possible, and certainly no later than 6 weeks from receipt of the appeal, unless otherwise agreed. Appeal hearings will be conducted in accordance with the CCG Appeals procedure as outlined in appendix 5. 6 Record-keeping In the event of disciplinary action being taken, the manager should keep a confidential record of the action taken, together with any evidence/statements etc. A copy of the final outcome correspondence will be retained on the employee s personal file. The Workforce department will retain all other papers relating to the investigation/disciplinary hearings. Warnings are active from the date and time of issue for the periods detailed in section 4, except in exceptional circumstances. In accordance with the principles outlined in Section 98 of the Employment Rights Act 1996 a record of all inactive warnings will be retained on the employee s file (for the duration of the whole employment period) and will normally be disregarded in determining a disciplinary penalty.

17 The CCG is committed to ensuring that all personal information is managed in accordance with current data protection legislation, professional codes of practice and records management and confidentiality guidance. More detailed information can be found in the CCG Data Protection and Confidentiality and related policies and procedures. Data is held and destroyed in accordance with the provisions of the Data Protection legislation and any Authority policy, which derives from that legislation. 7 APPENDICES Appendix 1 Procedure to be followed at a Disciplinary Hearing Appendix 2 Code of Good Practice for Investigations Appendix 3 Examples of issues that the CCG is likely to consider as misconduct and gross misconduct and which may result in summary dismissal Appendix 4 Standards of Performance and Conduct Appendix 5 Appeals against Dismissal CCG Appeals Procedure Appendix 6 Specimen Letter: Confirmation of Suspension Template letter Appendix 7 Specimen Letter: Requesting Attendance at a Disciplinary Hearing Appendix 8 Specimen Letter: Outcome of Disciplinary Hearing Appendix 9 Equality Impact Assessment Appendix10 Sustainability Impact Assessment

18 8 Appendix 1: Procedure to Be Followed at a Disciplinary Hearing PROCEDURE TO BE FOLLOWED AT A DISCIPLINARY HEARING The following is a guide as to the recommended procedure to follow at a Disciplinary Hearing however it should be noted that the Chair of a panel may vary this process as appropriate to ensure exploration of all the facts and circumstances. If the respondent, or their representative, is unable to attend the respondent will need to provide reasonable notice and reasons for being unable to attend and the hearing will be rescheduled within ten working days of the original date, where possible. If the respondent fails to attend the hearing without a reasonable explanation or is persistently unable to do so (for example for health reasons), the panel may have to proceed and make a decision based on the available evidence without the respondent being present at the hearing. 1. The Chair of the panel hearing the case ( The Chair ) will introduce the parties and ensure that any specific arrangements, such as an induction loop facilities, interpreter(s) or signer(s) have been made and are satisfactory. 2. The Chair will ensure that the respondent has been given an opportunity to be represented if they so wish. Representation may be from a trade union or staff organisation, or from a work colleague. There is no right to legal representation in this process. Witnesses are not entitled to representation but may, under certain circumstances, have a trade union or staff organisation representative or work colleague acting in a supportive role who will not be entitled to take any part in the proceedings. 3. Observers may be allowed at the discretion of the Chair and following discussion with the parties. Observers will not be allowed to take any part in the proceedings. 4. The Chair will ensure that all parties understand the purpose of the hearing and the procedure to be followed. The Chair will request that all attendees turn off any electronic devices to avoid unnecessary interruptions during the hearing and advise that the CCG expressly prohibits the recording of meetings. 5. The Chair will ensure that any evidence to be considered at the hearing has been produced and exchanged in advance of the hearing. Any request to submit additional evidence in the course of the hearing will be determined by the Chair after due consideration of the interests of natural justice and the potential disadvantage to any party. Where additional evidence is allowed, the parties should be given a reasonable time to consider it before proceeding. 6. The investigating officer will be asked to present the facts from the investigation process, using written statements and witnesses as appropriate. The key facts should normally be summarised in writing and circulated to the parties in advance of the hearing. 7. Where witnesses are called to give evidence the investigating officer will question each witness first, followed by the respondent or his/her representative and the Chair or panel members. The investigating officer may re-examine each witness to clarify any point raised in the questioning.

19 8. The respondent is generally entitled to be present throughout the hearing. However, in exceptional circumstances, e.g. harassment, it may be deemed more appropriate to keep the parties separated and for the right to question to be exercised by the respondents representative. In such cases, all reasonable care must be taken to ensure that the process does not unduly disadvantage the respondent. 9. When the investigating officer has finished presenting the facts, he or she may be questioned by the respondent, or his/her representative, and the Chair or panel members. 10. The Chair will then invite the respondent or his/her representative to respond to the findings of the investigating officer, with particular regard to any findings of fact that might be in dispute. Witnesses may be called in support of the respondent and may be questioned by the investigating officer, Chair or the panel members. The respondent or his/her representative may re-examine witnesses to clarify any issues raised in the course of questioning. 11. When the respondent has completed his or her response, the Chair or panel members may ask any final questions. 12. The investigating officer may finish by summing up their case followed by the respondent having the opportunity to sum up. No further questions will be taken at this stage. 13. No presentation may be interrupted by the other parties except to raise a procedural point or when called upon to question witnesses. The Chair or panel members may, however, question any of the parties at any time if they believe that to be in the interests of natural justice. 14. The parties, including the investigating officer, will then be asked to leave the room whilst the Chair/panel considers the evidence and reaches a decision. 15. The Chair/panel must first determine whether, on the basis of the evidence put to the hearing, the allegations are proven. The Chair/panel may require access to additional information in order to clarify points or need time to reach a decision. In such circumstances a further meeting would be set up as soon as possible when additional information could be presented and/or a decision reached and communicated. If the case is not proven, the matter will be closed and any reference to the allegations will be removed from the personal file. 16. If the case is proven, details of the respondent s employment record should be taken into account, including any current and relevant disciplinary warnings, when deciding on the sanction to be applied. In circumstances where there is a current disciplinary warning(s) a panel considering further disciplinary action would have the following options: take no further action extend a previously issued warning if the current breach is shown to be related

20 issue a more serious warning/dismissal decision if the current breach is shown to be related issue a further disciplinary warning if the current breach is unrelated to previous matters consider all previous matters and issue a more serious warning/dismissal decision on the basis of serious misconduct. 17. Once a decision is made, the investigating officer and the respondent should then be recalled to the hearing and informed of the outcome. 18. The Chair/panel must confirm any decision in writing within 7 days to the employee. The letter will cover the following points: summarise the allegation(s) made identify the panel s conclusion(s) from the information presented state any disciplinary action taken along with any relevant timescale identify the consequences of any repetition of the disciplinary breach where an improvement in conduct is required identify the level of improvement along with any timescales which are to apply. (Any review process should stipulate whether it will be continuous or conducted at the end of a specified period) establish the right of appeal and the timescale and process for making this request

21 9 Appendix 2: Code of Good Practice for Investigations Before holding a disciplinary hearing, it is crucial an employer has sound evidence on which to base their decisions. Failing to conduct a full investigation, in all but the most exceptional of circumstances, may render a dismissal unfair and result in costly consequences in terms of tribunal awards, and staff morale. Investigations will be required within the CCG in response to a wide range of situations, including but not limited to: Disciplinary allegations Grievances Complaints about discrimination, harassment or bullying Complaints from patients and relatives Personal injury claims Issues of capability Allegations of fraud The CCG also has a Whistleblowing Policy and harassing or victimising a whistleblower (including informal pressures) will be considered a serious disciplinary offence and will be dealt with under this procedure. It is essential to ensure that investigations are conducted promptly, thoroughly and fairly. The following guidelines should therefore be applied in all cases: The purpose of any investigation is not to build a case or a defence, but to establish the facts The line manager of the person facing an allegation or complaint should take responsibility for the investigation In cases of alleged fraud, the CCG s internal audit department should be notified and involved immediately The investigating officer should, without delay, obtain statements from any witnesses, together with other relevant documentary information Adequate time and notice of meetings should be given to employees who need to be interviewed or produce statements. Where the employee to be interviewed is the subject of a complaint or allegation, he or she must be provided with details of such complaint or allegation in advance of the interview All staff being interviewed should be given a reasonable opportunity to obtain support and/or guidance from a trade union or staff organisation, or from a work colleague The initial evidence gathered should be used to prepare an estimate of the time and resources needed to complete the investigation

22 The evidence collected should be tested for accuracy against other witness accounts and/or documentary evidence Witnesses should be aware that statements prepared during the investigations will be used as evidence for any subsequent disciplinary hearing Little reliance should be placed on hearsay evidence unless this points to, or can be tested against, more reliable evidence Every reasonable effort should be made to respect the confidence of all staff involved in the investigation. However staff should be advised that unless there are exceptional circumstances, the respondent will be entitled to see all statements and interview records in the event of formal proceedings. The investigating officer should determine what evidence is relevant to the issue at hand, i.e. what helps to prove the facts rather than what strengthens or weakens the case The evidence collected should be used as the basis for a decision as to any further action that may be required Once the investigation has sufficient evidence on which to base a decision, finish the investigation. The standard of proof for most internal investigations and any subsequent disciplinary hearing will need to be on the balance of probabilities. The case does not have to be proved beyond reasonable doubt for it to stand up in a tribunal. Further advice and guidance on conducting investigations is available from embed HR.

23 10 Appendix 3: Examples of issues that the CCG is likely to consider as misconduct and gross misconduct and which may result in summary dismissal Examples of issues that the CCG is likely to consider as misconduct and gross misconduct and which may result in summary dismissal Please note that this list is neither exclusive nor exhaustive and each case will be considered on its own merits Misconduct Failure to adhere to working hours. Unauthorised absence from duty. Refusal or failure to obey a reasonable instruction. Criminal activities other than those classed as gross misconduct. Disregard of safety practices, procedures and rules. Unauthorised presence on CCG property. Unauthorised use of CCG equipment. Unauthorised destruction, alteration, addition to or erasure of official documents. Being an accessory to a disciplinary offence by another employee. Abusive behaviour toward another employee, patient or member of the public. Wilful hindering of production or of work schedules. Deliberate misuse or abuse of the CCG's information technology equipment, facilities or procedures. Failure to follow CCG procedures and policies Gross Misconduct Dishonesty, including fraud, theft or providing false information e.g. on a timesheet or travel claim form. Failure to disclose information e.g. relationship to a Director or holder of senior office under the CCG / Corruption, receipt of money, favours or excessive hospitality in respect of services rendered, or any other act not in accordance with the CCG Standards of Business Conduct. Abusive or violent behaviour including threats and verbal or physical assault, at any time whilst on duty or on CCG premises III-treatment or mishandling of patients

24 Negligence in the performance of duty, including dereliction of duty. (This may include an action or omission that compromises the safety of others) Wilful damage to CCG property or equipment Breach of confidentiality Unauthorised or inappropriate use of CCG vehicles, equipment or resources Criminal offences that might affect a persons suitability for their job or where there has been a failure to disclose convictions/proceedings Loss of, or failure to obtain qualifications required by law, or by the CCG, for performance of duty (e.g. driving licence, professional registration) Being unfit for duty through alcohol or substance misuse Illegal possession, use and/or distribution of drugs Professional misconduct All forms of harassment, bullying or intimidation Discrimination which contravenes Equal Opportunities legislation or the CCG's Equality and Diversity Policy Abuse of position or power Perpetration of a hoax practical joke or other malicious act resulting in serious disruption to patients, services or staff Sleeping on duty, except when authorised Breach of IT policy e.g. or internet usage. Misuse or failure to safeguard confidential information and/or patient data will be regarded as misconduct/gross misconduct. It should be noted that misconduct of some of the types shown above, if occurring outside the course of work, may still result in disciplinary action if the misconduct results in the impairment of, capability, suitability or acceptability of the employee to perform his job with the CCG effectively.

25 11 Appendix 4: Standards of Performance and Conduct This guide aims to give an indication of the standards of performance and conduct expected of all staff employed by the CCG. The CCG recognises that this guide cannot cover every situation that arises and that the guidelines or rules may vary according to type of work, working conditions and size of department Department Rules In addition to these standards and to CCG policies, some Departments will have specific rules which will relate to the activities of the Department (e.g. safe handling of dangerous substances, safe use of machinery and equipment etc) 11.2 Standards of Conduct All staff should be aware that they will be seen as representatives of the CCG and the NHS as a whole. It is therefore important that they present a professional and caring image to patients, visitors and colleagues. There are several sources of guidance on the expected standards of conduct within the CCG, with which all staff should be familiar, including: Staff induction process Performance management documents Contract of Employment Standards of Business Conduct Policy As a general guide, all employees of the CCG will be expected to: respect and protect the dignity of service users, carers and colleagues observe the CCG s Equality and Diversity Policy observe Health and Safety policies and safe working practices at all times comply with requirements for professional registration and regulation work effectively and constructively, individually and as part of a team respect the confidentiality of patients and colleagues demonstrate the highest standards of honesty and integrity attend work punctually and regularly obtain the appropriate approval for any absence carry out reasonable requests or instructions from managers be aware of, and adhere to, CCG policies and procedures

26 Appendix 5: Appeals Against Dismissal - CCG Appeals Procedure 12.1 Panel Membership A CCG Appeals Panel will consist of three members including at least one Lay/GP Member of the CCG, who will act as chair to the panel. Other members will be drawn from the Senior Management Team or Governing Body plus a workforce representative. No member of the panel will have had any previous involvement in the case. In cases of dismissals which concern a professional matter, at least one panel member should have a specialist knowledge of the employee s field of work. Where this is not possible, a professional adviser acceptable to both parties should preferably be employed within the NHS. They should advise the panel only on matters relating to the employee s professional conduct or competence, and does not have the right to vote when the panel makes a decision Panel Arrangements embed HR will undertake the administrative arrangements for appeal panels. A Workforce representative will act as secretary to the appeal panel and will offer advice and guidance as necessary. The parties to the appeal will be responsible for providing statements of case and other documentary evidence, and for ensuring the availability and attendance of any witnesses. Appropriate facilities, including time off for representatives and witnesses, should be requested from the appropriate line manager in advance and will not be unreasonably withheld Statements of Case Written statements of case, setting out the main points at issue should be prepared by both parties or their representatives. The Management statement: this should set out the reasons for the disciplinary action taken. It should be sufficiently detailed to enable the employee to understand on what basis the decision was reached, and to prepare their own case of defence. The Employee s statement: this should set out clearly the grounds on which they are contesting the manager s decision. Mutual exchange of papers prior to the hearing will take place by agreement on the same date through embed HR. This should be no less than 5 calendar days before the Appeal Hearing unless agreed otherwise between the parties. As soon as both statements have been received they will be simultaneously circulated to: The CCG Appeals Panel members The presenting manager and Workforce representative The employee and representative

27 12.4 Role and Decision Making Powers of the Panel The Panel s role is to determine whether the disciplinary action which is subject to the appeal was fair and reasonable, taking into consideration all the relevant facts and circumstances of the case. Where the events which gave rise to the disciplinary action are also the subject of legal proceedings, the panel may still be constituted and reach a decision, without awaiting the outcome of the court case. The decision of the CCG Appeals Panel is final and there is no further level of internal appeal. The appeal panel, by unanimous or majority decision, shall have the power to: i. Dismiss the appeal and endorse the disciplinary action taken ii. iii. iv. Dismiss the appeal but suggest re-engagement in a different post if this is possible Uphold the appeal but substitute the original decision with one that the panel considers more appropriate Uphold the appeal and reinstate the employee 12.5 Role of the Secretary to the Appeal An embed HR Representative appointed to support the Chair and Panel members shall be in attendance throughout the hearing/appeal, recording the proceedings and shall remain with the Chair and Panel members whilst they consider their decision. He/she shall advise the Chair and Panel members on points of procedure and may ask questions for clarification. He/she shall not have been involved in the case previously. The embed HR representative will also ensure that both parties are advised in writing of the Panel s decision Notification of Panel Decisions The decision of the appeal panel will normally be notified to the parties at the end of the hearing and confirmed in writing within seven days. In exceptional circumstances, the decision may be deferred for up to seven days. There will be no further right of appeal Representation / Others present at the Appeal The Employee and Representative The employee has the right to appear personally before the panel, either alone or accompanied by a representative. If the employee wishes, the representative need not be the same person who acted at the time disciplinary action was taken The Manager The manager who took the disciplinary action will normally present the management case. The Workforce representative who attended the disciplinary hearing may assist the manager in presenting the case.

28 Witnesses Either party may call witnesses. It is the responsibility of the respective parties (assisted by the Workforce Department if necessary) to arrange their attendance. Witnesses will be granted paid time off to appear at the appeal hearing. Witnesses may only be present in the hearing when they are required to give their evidence. Where appropriate, complainants in harassment cases may not be required to give evidence in the presence of, or be subjected to cross-examination by, the person who is the subject of their complaint. In these circumstances, questioning will be conducted by the representative of the subject of the complaint, to whom he or she will have ready access. Witnesses do not have a right to representation but may, under certain circumstances (e.g. in a complaint of harassment), be supported by a staff representative or CCG work colleague. The supporter will play no part in the appeal Observers Either party may request the attendance of observers, who will not take part in the proceedings. Observers presence must be permitted by the Chairperson and both parties and such requests will not be unreasonably refused. They must withdraw immediately at the direction of the Chairperson Failure to Appear at the Appeal Where, having agreed the arrangements for appeal, either party fails to appear without good cause the panel may choose to adjourn the hearing or to proceed with the case in their absence Procedure to be followed at the Hearing The Role of the Chair of the Panel The Chairperson of the panel will introduce those present, will briefly explain the procedure to be followed and will ensure that all parties have a complete set of documents. Any preliminary or procedural points should be raised at this time. The decision of the panel on any point of order, whether raised at the outset or during the course of the hearing, will be final Order of presentation of Case The following procedure should be adopted: The Manager states the case in the presence of the employee and representative The Manager may call witnesses The employee (or representative) may question the Manager and witnesses The person hearing the case or the panel members may question the Manager and witnesses The Manager may re-examine witnesses